Common use of Restrictions on Transfer of Member Interest Clause in Contracts

Restrictions on Transfer of Member Interest. (a) The Owner Participant covenants and agrees that it shall not during the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Company and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee; provided, however, that the Owner Participant may assign, convey or transfer all or part of its interest in the Member Interest without such consent to a Person (the "OP Transferee") that shall assume the duties and obligations of ------------- the Owner Participant under the Operative Documents pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit G hereto, or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, if the following conditions shall have been satisfied: (i) The Company and the Lessee Guarantor, and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, shall have received an opinion of counsel, which opinion is reasonably satisfactory to the Company and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained, and the Pass Through Trustees shall have received a copy of, and be permitted to rely upon, such opinion; (ii) the OP Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that has, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture Trustee) by an OP Guarantor that has, a tangible net worth of at least $75 million calculated in accordance with GAAP; and (iv) unless (A) the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereof, or (B) the Company in its sole discretion has consented to such transfer, or (C) a Lease Bankruptcy or Payment Default or Lease Event of Default shall have occurred and be continuing, the OP Transferee shall not be a Competitor of the Company or any Affiliate thereof, and neither the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with the Company or any Affiliate thereof. Notwithstanding the foregoing, no partial assignment of any Owner Participant's interest shall be permitted under this Section 7.1 unless (x) the OP Transferee is acquiring at least one third of the total Member Interest and (y) after giving effect to said partial assignment, there shall not be more than two Owner Participants. (b) For purposes of the preceding Section 7.1(a) and Section 5.5, a "Competitor" of the Company or any Affiliate thereof shall be an entity, or an ----------- Affiliate thereof, that is significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market in the United States or Canada, provided that, the foregoing restriction shall not apply in the case of an OP Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such OP Transferee is an entity involved in making passive investments (such as the Owner Participant's investment in the Transaction), and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures, and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the Ontario, Quebec, NEPOOL, NYPOOL, or PJM power markets or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the Company, and shall contain a list of entities that the Company reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereof; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii) and (a)(iv) shall not inure to the benefit of the Company if such transfer is during the continuance of a Lease Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by the Owner Participant of any portion of the Member Interest shall include a transfer of an interest in any direct or indirect parent of the Owner Participant up to but excluding the Equity Investor; provided, that, as long as the OP Guaranty remains in full force and effect, the transfer restrictions set forth in clause (a)(i), (a)(iii) and (a)(iv) will not apply to any transfers of an interest in such direct or indirect parent of the Owner Participant to other entities that are at all times 100% related to the Equity Investor Parent. (d) So long as the Lease Debt is outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the equity interest in the Owner Participant, that S&P shall have received an opinion of counsel substantially to the effect of the nonconsolidation opinion delivered on the Closing Date or in such other form as may be acceptable to S&P, or if as a consequence of a change in bankruptcy law such opinion cannot be given: (1) in connection with the events described in clauses (i) and (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or the OP Transferee of the equity interest in the Owner Participant in such transfer with the Owner Lessor immediately after giving effect to the transfer of such equity interest is not materially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessor, immediately prior to giving effect to such transfer; and (2) in connection with an event described in clause (i) above, an Officer's Certificate of the OP Transferee certifying that the organizational documents of the Owner Lessor contain, and will continue to contain after the transfer, provisions substantially equivalent to those contained in the organizational documents of the Owner Lessor on the Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to S&P. (e) The Company shall not be responsible for any Taxes arising out of or caused by any transfer pursuant to this Section 7.1 and the Pricing Assumptions shall not be changed as a result of any such transfer. (f) The Owner Participant shall give the Owner Lessor, the Lessor Manager, the Lease Indenture Trustee, and the Company 30 days' prior written notice of any transfer pursuant to this Section 7.1, or 10 days' in the case of a transfer to an Affiliate of the Equity Investor. Such written notice shall be in the form of a certificate and stating the name and address of any proposed OP Transferee and that the proposed transfer satisfies the requirements of this Section 7. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs. (h) Upon any such transfer in compliance with this Section 7.1, (i) such OP Transferee shall to the extent of the Member Interest transferred (x) be deemed the "Owner Participant" for all purposes, and (y) enjoy the rights and privileges and perform the obligations of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to which such Owner Participant is a party, and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to the "Owner Participant" shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring Owner Participant and the OP Guarantor, if any, of such transferring Owner Participant's obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant or its OP Guarantor is a party or by which such transferring Owner Participant and its OP Guarantor is bound to the extent such obligations are expressly assumed by the OP Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant or its OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer.

Restrictions on Transfer of Member Interest. XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- (a) The Owner Participant covenants and agrees that it shall not No OP Member shall, during the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of the Company SEMA and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that the Owner Participant an OP Member may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a (x) an Affiliate of the OP Member, if the OP Guaranty shall remain outstanding and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person (the "OP Transferee") that shall assume the duties and obligations guarantees all of ------------- the Owner Participant Participant's obligations under the Operative Documents pursuant to an Assignment and Assumption Agreement a guaranty substantially in the form of Exhibit G hereto, U hereto (such Affiliate or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been dischargedsuch other Person, the Lease Indenture Trustee"Member Transferee") and if, if with respect to clause (y), each ----------------- of the following conditions shall have been satisfied: (i) The Company and the Lessee Guarantor, and, so long as Member Transferee meets the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, shall have received an opinion of counsel, which opinion is reasonably satisfactory to the Company and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained, and the Pass Through Trustees shall have received a copy of, and be permitted to rely upon, such opinion; following criteria: (ii1) the OP Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that has, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture Trustee) by an OP Guarantor that has, a tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and and (iv2) unless (A) the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation waived by SEMA, and so long as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereof, or (B) the Company in its sole discretion has consented to such transfer, or (C) a no Significant Lease Bankruptcy or Payment Default or Lease Event of Default shall have occurred and be continuing, the OP such Member Transferee shall is not be a Competitor of the Company of, or in material litigation with, SEMA or any Affiliate thereof, and neither the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with the Company or any Affiliate thereof. Notwithstanding the foregoing, no partial assignment of any Owner Participant's interest shall be permitted under this Section 7.1 unless (x) the OP Transferee is acquiring at least one third of the total Member Interest and (y) after giving effect to said partial assignment, there shall not be more than two Owner Participants. (b) For purposes of the preceding Section 7.1(a) and Section 5.5, a "Competitor" of the Company or any Affiliate thereof shall be an entity, or an ----------- Affiliate thereof, that is significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market in the United States or Canada, provided that, the foregoing restriction shall not apply in the case of an OP Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such OP Transferee is an entity involved in making passive investments (such as the Owner Participant's investment in the Transaction), and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures, and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the Ontario, Quebec, NEPOOL, NYPOOL, or PJM power markets or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the Company, and shall contain a list of entities that the Company reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereof; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii) and (a)(iv) shall not inure to the benefit of the Company if such transfer is during the continuance of a Lease Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by the Owner Participant of any portion of the Member Interest shall include a transfer of an interest in any direct or indirect parent of the Owner Participant up to but excluding the Equity InvestorSEMA; provided, that, as long as that the OP Guaranty remains in full force and effect, the transfer restrictions condition set forth in clause (a)(i), (a)(iii2) and (a)(iv) will above shall not apply to any transfers of an interest in such direct or indirect parent Member Transferees that are Affiliates of the Owner Participant to other entities that are at all times 100% related to the Equity Investor Parent.OP Member; (d) So long as the Lease Debt is outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the equity interest in the Owner Participanttotal number of Unrelated Members, that S&P shall have received an opinion of counsel substantially to the effect of the nonconsolidation opinion delivered on the Closing Date or in such other form as may be acceptable to S&P, or if as a consequence of a change in bankruptcy law such opinion cannot be given: (1) in connection with the events described in clauses (i) and (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or the OP Transferee of the equity interest in the Owner Participant in such transfer with the Owner Lessor immediately after giving effect to the transfer of such equity interest is transactions shall not materially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessor, immediately prior to giving effect to such transferexceed three; and (2iii) the Member Transferee agrees in connection with an event described the guaranty or in clause (i) aboveanother written instrument reasonably acceptable to SEMA and, an Officer's Certificate for so long as the Lien of the OP Transferee certifying that Lease Indenture has not been terminated or discharged, the organizational documents of Lease Indenture Trustee and the Owner Lessor contain, and will continue Pass Through Trustee to contain after the transfer, provisions substantially equivalent to those contained in the organizational documents of the Owner Lessor on the Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to S&P.bound by this Section 16.18. ------------- (eb) The Company shall not be responsible for any Taxes arising out of or caused by any transfer pursuant to this Section 7.1 and the Pricing Assumptions shall not be changed as a result of any such transfer. (fc) The Owner Participant OP Member shall give the Owner Lessor, the Lessor Owner Manager, the Lease Indenture Trustee, the Pass Through Trustee and the Company SEMA 30 days' days prior written notice of any transfer pursuant to this Section 7.1such transfer, or 10 days' days in the case of a transfer to an Affiliate of the Equity Investor. Such written notice shall be in the form of a certificate and stating Owner Participant, specifying the name and address of any proposed OP Member Transferee and that such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 716. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs. (h) Upon any such transfer in compliance with this Section 7.1, (i) such OP Transferee shall to the extent of the Member Interest transferred (x) be deemed the "Owner Participant" for all purposes, and (y) enjoy the rights and privileges and perform the obligations of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to which such Owner Participant is a party, and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to the "Owner Participant" shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring Owner Participant and the OP Guarantor, if any, of such transferring Owner Participant's obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant or its OP Guarantor is a party or by which such transferring Owner Participant and its OP Guarantor is bound to the extent such obligations are expressly assumed by the OP Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant or its OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer.

Restrictions on Transfer of Member Interest. (a) The Owner Participant covenants and agrees that it shall not during the Facility Lease Term, directly or indirectly, Term assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Company Facility Lessee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee; provided, however, that the Owner Participant may assign, convey or transfer all or part of its interest in the Member Interest without such consent to a Person (the "OP Transferee") that which shall assume the duties and obligations of ------------- the Owner Participant under the Operative Documents pursuant to an Conemaugh Participation Agreement 46 52 Assignment and Assumption Agreement substantially in the form of Exhibit G hereto, or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture TrusteeAgreement, if each of the following conditions shall have been satisfied: (i) The Company and the Lessee GuarantorFacility Lessee, and, so long as the Lien of the Lease Indenture shall has not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee, shall have received an opinion of counsel, which opinion is and counsel are reasonably satisfactory to the Company and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture TrusteeFacility Lessee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained, and the Pass Through Trustees shall have received a copy of, and be permitted to rely upon, such opinion; (ii) the OP Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that which has, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents of which are guaranteed (pursuant to an OP Guaranty substantially Guarantee or in the another form of Exhibit H-1 hereto or otherwise in form and substance reasonably satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture TrusteeFacility Lessee) by an OP Guarantor that has, a Person which has a tangible net worth of at least equal to $75 million calculated in accordance with GAAP; and (iv) unless (A) waived by the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation Facility Lessee, and so long as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereof, or (B) the Company in its sole discretion has consented to such transfer, or (C) a no Significant Lease Bankruptcy or Payment Default or Lease Event of Default shall have occurred and be continuing, neither the Transferee nor the OP Transferee shall not be Guarantor is a Competitor of of, or in material litigation with, the Company Facility Lessee or any Affiliate thereof; (v) the transferring Owner Participant shall pay, and neither without any right of indemnification from the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with the Company Facility Lessee or any Affiliate thereof. Notwithstanding the foregoingother Person, no partial assignment of all reasonable documented out-of-pocket costs, fees and expenses incurred in connection with any Owner Participant's interest shall be permitted under this Section 7.1 unless such transfer by (x) the OP Transferee is acquiring at least one third of other Transaction Parties, except the total Member Interest Facility Lessee and its Affiliates and (y) after giving effect to said partial assignment, there by the Facility Lessee and its Affiliates so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; (vi) such transfer shall not cause there to be more than two three Owner Participants (as defined in this Agreement or in the Operative Documents in any Related Facility Lease) that are not Related Parties with such other Owner Participants.; and (vii) the Owner Participant has not previously assumed the Notes pursuant to Section 8.7; (b) For purposes of the preceding Section 7.1(a) and Section 5.5clause (a), a "Competitor" of the Company or any Affiliate thereof Facility Lessee shall be an entityentity which, or an ----------- Affiliate thereofof which, that is significantly involved as a generator, seller, trader, wholesale purchaser seller or marketer trader of capacity or energy in the electric market in the United States or Canadamarket, provided that, the foregoing restriction shall not apply in the case of an OP a Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser seller or marketer trader so long as (i) such OP Transferee is an entity regularly involved in making passive investments (such as the Owner Participant's contemplated investment in the Transaction), and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which shall be reasonably acceptable to the Company Facility Lessee to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser seller or marketer trader of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company Facility Lessee to maintain such procedures, and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the OntarioPJM, Quebec, NEPOOL, NYPOOL, ECAR NYPP or PJM power markets VACAR or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the CompanyFacility Lessee, and shall contain a list of entities that which the Company Facility Lessee reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereofFacility Lessee; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(ii), (a)(iiiiii), (iv) and (a)(ivv) of Section 8.1(a) above shall not inure to the benefit of the Company Facility Lessee if such transfer is in connection with the exercise of remedies during the continuance of a Lease Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by the Owner Participant of any portion of the Member Interest shall include a transfer of an interest in any direct or indirect parent of the Owner Participant up to but excluding the Equity Investor; provided, that, as long as the OP Guaranty remains in full force and effect, the transfer restrictions set forth in clause (a)(i), (a)(iii) and (a)(iv) will not apply to any transfers of an interest in such direct or indirect parent of the Owner Participant to other entities that are at all times 100% related to the Equity Investor Parent. (d) So long as the Lease Debt is outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the equity interest in the Owner Participant, that S&P shall have received an opinion of counsel substantially to the effect of the nonconsolidation opinion delivered on the Closing Date or in such other form as may be acceptable to S&P, or if as a consequence of a change in bankruptcy law such opinion cannot be given: (1) in connection with the events described in clauses (i) and (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or the OP Transferee of the equity interest in the Owner Participant in such transfer with the Owner Lessor immediately after giving effect to the transfer of such equity interest is not materially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessor, immediately prior to giving effect to such transfer; and (2) in connection with an event described in clause (i) above, an Officer's Certificate of the OP Transferee certifying that the organizational documents of the Owner Lessor contain, and will continue to contain after the transfer, provisions substantially equivalent to those contained in the organizational documents of the Owner Lessor on the Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to S&P. (e) The Company shall not be responsible for any Taxes arising out of or caused by any transfer pursuant to this Section 7.1 and the Pricing Assumptions shall not be changed as a result of any such transfer. (f) The Owner Participant shall give the Owner Lessor, the Lessor Manager, the Lease Indenture Trustee, and the Company 30 days' prior written notice of any transfer pursuant to this Section 7.1, or 10 days' in the case of a transfer to an Affiliate of the Equity Investor. Such written notice shall be in the form of a certificate and stating the name and address of any proposed OP Transferee and that the proposed transfer satisfies the requirements of this Section 7. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs. (h) Upon any such transfer in compliance with this Section 7.1, (i) such OP Transferee shall to the extent of the Member Interest transferred (x) be deemed the "Owner Participant" for all purposes, and (y) enjoy the rights and privileges and perform the obligations of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to which such Owner Participant is a party, and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to the "Owner Participant" shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring Owner Participant and the OP Guarantor, if any, of such transferring Owner Participant's obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant or its OP Guarantor is a party or by which such transferring Owner Participant and its OP Guarantor is bound to the extent such obligations are expressly assumed by the OP Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant or its OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer.

Restrictions on Transfer of Member Interest. (a) The Owner Participant covenants and agrees that it shall not during the Construction Period or the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Company (so long as no Company Event of Default has occurred and is continuing) and, so long as any Lessor Notes remain outstanding, the Lien Indenture Trustee (acting on the instruction of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture TrusteeRequired Noteholders); provided, however, that the Owner Participant may assign, convey or transfer all or part any portion of its interest in the Member Interest without such consent to a Person (the "OP “Transferee"”) that which shall assume the duties and obligations of ------------- the Owner Participant under the Operative Documents (and the guarantor or guarantors, as the case may be, of the Transferee shall assume the duties and obligations of the OP Guarantor under the Operative Documents), with respect to the interest being transferred pursuant to an Assignment and Assumption a Transfer Agreement substantially in the form of Exhibit G heretoP (and such guarantor or guarantors, or otherwise in form as the case may be, shall execute and substance satisfactory deliver to the Company andother parties hereto a guaranty in the form of Exhibit J), so long as the Lien if each of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, if the following further conditions shall have been satisfied: (i) The the Company (so long as no Company Event of Default has occurred and is continuing), the Lessee Guarantor, Owner Lessor and, so long as any Lessor Notes remain outstanding, the Lien Indenture Trustee, for the benefit of the Lease Indenture shall not have been discharged, the Lease Indenture TrusteeNoteholders, shall have received an opinion of counselcounsel of the Transferee and the transferring Owner Participant, which opinion is shall be reasonably satisfactory to each of the Company Company, the Owner Lessor and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee, Trustee to the effect that (A) such Transfer Agreement (and any guaranty of the Transferee’s obligations) is a legal, valid and binding obligation of, and is enforceable against, each party thereto (subject to customary qualifications), (B) all material regulatory approvals Governmental Approvals required in connection with such transfer or necessary to assume the Owner Participant's ’s obligations (and issue any guaranty of the Transferee’s guarantor or guarantors, as the case may be) under the Operative Documents shall have been obtained, (C) the existence, power and the Pass Through Trustees shall have received a copy authority of, and be permitted due authorization, execution and delivery of all relevant documentation by, the Transferee (and any guarantor of such Transferee’s obligations under the Operative Documents) and (D) the proposed transfer of the Member Interest will not require registration pursuant to rely upon, such opinionthe Securities Act; (ii) the OP Transferee (and any guarantor of the Transferee’s obligations under the Operative Documents) shall be a "“United States person" ” within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee or any guarantor of such Transferee shall have a Consolidated Tangible Net Worth of at least $75 million, calculated in accordance with GAAP and, if such transfer occurs during the Commitment Period, the Reference Debt of any guarantor of such Transferee shall be rated at least BBB+ by S&P and Baal by Xxxxx’x; (iv) neither the Transferee nor any guarantor (nor any Affiliate of any such Person) shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that has, or the payment and performance obligations of which in material litigation with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture Trustee) by an OP Guarantor that has, a tangible net worth of at least $75 million calculated in accordance with GAAP; and (iv) unless (A) the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereofthereof unless, in either case, the Company shall have, in its sole discretion, consented to such transfer; (v) after such transfer, there shall be no more than four Owner Participants; and (vi) the transferring Owner Participant shall pay, without any right of indemnification from the Company or any other Person, on an After Tax-Basis, all reasonable documented out-of-pocket costs, fees and expenses (including reasonable attorney’s fees and expenses) incurred in connection with any such transfer or proposed transfer, including any of foregoing relating to any amendments to the Operative Documents required in connection therewith, by (A) the other parties hereto, except the Company and (B) the Company, so long as no Significant Company in its sole discretion has consented to such transfer, or (C) a Lease Bankruptcy or Payment Default or Lease Company Event of Default shall have has occurred and be continuingis continuing at the time of such transfer. (b) For purposes of determining whether a Transferee, the OP any guarantor of such Transferee shall not be or any Affiliate of any such Person is a Competitor “Competitor” of the Company or any Affiliate thereof, and neither the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with the Company or any Affiliate thereof. Notwithstanding shall, on the foregoingConstruction Closing Date, no partial assignment provide a list of any Owner Participant's interest shall be permitted under this Section 7.1 unless (x) the OP Transferee is acquiring at least one third entities, each of the total Member Interest and (y) after giving effect to said partial assignment, there shall not be more than two Owner Participants. (b) For purposes of the preceding Section 7.1(a) and Section 5.5, a "Competitor" of the Company or any Affiliate thereof shall be an entitywhich, or an ----------- Affiliate thereofof which, that is shall be significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric WECC power market or any successor thereto as determined in good faith by the United States or CanadaCompany; provided, provided that, that the foregoing restriction set forth in paragraph (a)(iv)(A) above shall not apply in the case of an OP a Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such OP Transferee is an entity involved in making passive investments (such as the Owner Participant's ’s investment in the Overall Transaction), ) and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which that shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures, procedures and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the Ontario, Quebec, NEPOOL, NYPOOL, or PJM WECC power markets market or any successor theretothereto and derives a material percentage of its revenues from participation in such power market. After the Construction Closing Date, the Company may, with the Owner Participant’s written consent, which consent shall not be unreasonably withheld, modify or (B) on supplement the initial List of Competitors, which may, Competitors from time to time, but no more often than once per year, be modified by year based on the Company, and shall contain a list of entities that standards used in preparing the Company reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereof; provided that such initial List of Competitors shall not contain more than 6 entities at and, in addition, after notice of any one timeproposed transfer by the Owner Participant pursuant to this Section 9.1. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii), (a)(iv) and (a)(iva)(v) shall not inure to the benefit of the Company if such transfer is in connection with the exercise of remedies during the continuance of a Lease Company Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by upon the occurrence of a Regulatory Event of Loss or an event described in clause (i) of the definition of “Deemed Loss” set forth in Appendix A, the Owner Participant shall have satisfied the transfer requirements of this Section 9.1 in the event the Transferee satisfies the conditions set forth in clauses (a)(ii) and (a)(iii), and the Owner Participant and the Transferee, as the case may be, shall satisfy each other condition set forth in this Section 9.1 as soon as practicable, but in any portion event within 15 days, following such assignment, conveyance or transfer; provided, that solely with respect to a Regulatory Event of Loss or an event described in clause (i) of the Member Interest definition of “Deemed Loss” set forth in Appendix A, the condition set forth in clause (a)(iv) shall include a not inure to the benefit of the Company and shall be deemed waived by the Company. (d) Notwithstanding anything to the contrary contained herein, any transfer of an interest in any direct or indirect parent of ownership interest in the Owner Participant (including any transfer of the OP Interest), up to but excluding the Equity InvestorOP Guarantor, shall comply with the transfer restrictions set forth in Section 9.1 (a); provided, that, as long as the OP Guaranty remains in full force and effect, the transfer restrictions set forth in clause (a)(i), (a)(iii) and (a)(iv) will not apply to any transfers of an interest in such direct or indirect parent of the Owner Participant to other entities that are at all times 100% related to wholly-owned, directly or indirectly, by the Equity Investor ParentOP Guarantor; provided, further, that, in any event, any such entity shall represent and covenant that it is not and will not be funding its equity amounts, and is not and will not be performing its obligations under the Operative Documents with Plan Assets. (de) So long as the Lease Debt is any Lessor Notes remain outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the equity interest in the Owner ParticipantOP Interest, that S&P the Rating Agencies shall have received an opinion of counsel substantially to the effect of the nonconsolidation opinion delivered on the Construction Closing Date or in such other form as may be acceptable to S&Pthe Rating Agencies or, or if as a consequence of a change in bankruptcy law law, such opinion cannot be given: (1) in connection with the events an event described in clauses clause (i) and above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Transferee with the Transferee’s parent immediately after giving effect to the transfer of such equity interest is not materially greater than the risk of bankruptcy consolidation of the transferor with such transferor’s parent, immediately prior to giving effect to such transfer or (2) in connection with an event described in clause (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or with the OP Transferee of the equity interest in the Owner Participant transferee in such transfer with the Owner Lessor immediately after giving effect to the transfer of such equity interest is not materially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessortransferor, immediately prior to giving effect to such transfer; and (2B) in connection with an event described in clause (i) above, an Officer's ’s Certificate of the OP Transferee certifying that the organizational documents Constitutive Documents of the Owner Lessor Transferee contain, and will continue to contain after the transfer, provisions substantially equivalent to those contained in the organizational documents Constitutive Documents of the Owner Lessor Participant on the Construction Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to S&P.the Rating Agencies. (ef) The Except as provided in Section 12.2 or in the Tax Indemnity Agreement and except for any transfer made in connection with the exercise of remedies during the continuance of a Company Event of Default, the Company shall not be responsible for any Taxes arising out of adverse Tax consequence to the Owner Lessor or caused by the Owner Participant resulting from any transfer pursuant to this Section 7.1 and the Pricing Assumptions shall not be changed as a result of any such transfer9.1. (fg) The Owner Participant shall give the Owner Lessor, the Indenture Trustee (so long as any Lessor Manager, the Lease Indenture Trustee, Notes remain outstanding) and the Company 30 days' fifteen (15) days prior written notice notice, in the form of an Officer’s Certificate, of any transfer pursuant to this Section 7.19.1, or 10 days' in the case of a transfer to an Affiliate of the Equity Investor. Such written notice shall be in the form of a certificate and stating specifying the name and address of any proposed OP Transferee and that such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 7. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs9.1. (h) Upon any such transfer that is made in compliance with this Section 7.19.1, (i) such OP the Transferee shall to the extent of the Member Interest transferred (x) be deemed the "“Owner Participant" ” for all purposes, purposes and (y) enjoy the rights and privileges privileges, and perform the obligations obligations, of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty Transfer Agreement and each other Operative Document to which such the transferor Owner Participant is a party, party and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty Transfer Agreement and each other Operative Document to the "“Owner Participant" ” shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring transferor Owner Participant and the OP Guarantor, if any, any guarantor of such transferring transferor Owner Participant's ’s obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant transferor or its OP Guarantor guarantor is a party or by which such transferring transferor Owner Participant and its OP Guarantor or guarantor is bound to the extent such obligations are expressly assumed by the OP a Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant transferor or its OP Guarantor any guarantor of the transferor from any liability existing immediately prior to or occurring prior to or simultaneously with such transfer.

Restrictions on Transfer of Member Interest. (a) The Owner Participant covenants and agrees that it shall not No OP Member shall, during the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of the Company SEMA and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that the Owner Participant an OP Member may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a (x) an Affiliate of the OP Member, if the OP Guaranty shall remain outstanding and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person (the "OP Transferee") that shall assume the duties and obligations guarantees all of ------------- the Owner Participant Participant's obligations under the Operative Documents pursuant to an Assignment and Assumption Agreement a guaranty substantially in the form of Exhibit G hereto, U hereto (such Affiliate or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been dischargedsuch other Person, the Lease Indenture Trustee"Member Transferee") and if, if with ----------------- respect to clause (y), each of the following conditions shall have been satisfied: (i) The Company and the Lessee Guarantor, and, so long as Member Transferee meets the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, shall have received an opinion of counsel, which opinion is reasonably satisfactory to the Company and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained, and the Pass Through Trustees shall have received a copy of, and be permitted to rely upon, such opinion; following criteria: (ii1) the OP Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that has, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture Trustee) by an OP Guarantor that has, a tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and and (iv2) unless (A) the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation waived by SEMA, and so long as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereof, or (B) the Company in its sole discretion has consented to such transfer, or (C) a no Significant Lease Bankruptcy or Payment Default or Lease Event of Default shall have occurred and be continuing, the OP such Member Transferee shall is not be a Competitor of the Company of, or in material litigation with, SEMA or any Affiliate thereof, and neither the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with the Company or any Affiliate thereof. Notwithstanding the foregoing, no partial assignment of any Owner Participant's interest shall be permitted under this Section 7.1 unless (x) the OP Transferee is acquiring at least one third of the total Member Interest and (y) after giving effect to said partial assignment, there shall not be more than two Owner Participants. (b) For purposes of the preceding Section 7.1(a) and Section 5.5, a "Competitor" of the Company or any Affiliate thereof shall be an entity, or an ----------- Affiliate thereof, that is significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market in the United States or Canada, provided that, the foregoing restriction shall not apply in the case of an OP Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such OP Transferee is an entity involved in making passive investments (such as the Owner Participant's investment in the Transaction), and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures, and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the Ontario, Quebec, NEPOOL, NYPOOL, or PJM power markets or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the Company, and shall contain a list of entities that the Company reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereof; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii) and (a)(iv) shall not inure to the benefit of the Company if such transfer is during the continuance of a Lease Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by the Owner Participant of any portion of the Member Interest shall include a transfer of an interest in any direct or indirect parent of the Owner Participant up to but excluding the Equity InvestorSEMA; provided, that, as long as that the OP Guaranty remains in full force and effect, the transfer restrictions condition set forth in clause (a)(i), (a)(iii2) and (a)(iv) will above shall not apply to any transfers of an interest in such direct or indirect parent Member Transferees that are Affiliates of the Owner Participant to other entities that are at all times 100% related to the Equity Investor Parent.OP Member; (d) So long as the Lease Debt is outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the equity interest in the Owner Participanttotal number of Unrelated Members, that S&P shall have received an opinion of counsel substantially to the effect of the nonconsolidation opinion delivered on the Closing Date or in such other form as may be acceptable to S&P, or if as a consequence of a change in bankruptcy law such opinion cannot be given: (1) in connection with the events described in clauses (i) and (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or the OP Transferee of the equity interest in the Owner Participant in such transfer with the Owner Lessor immediately after giving effect to the transfer of such equity interest is transactions shall not materially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessor, immediately prior to giving effect to such transferexceed three; and (2iii) the Member Transferee agrees in connection with an event described the guaranty or in clause (i) aboveanother written instrument reasonably acceptable to SEMA and, an Officer's Certificate for so long as the Lien of the OP Transferee certifying that Lease Indenture has not been terminated or discharged, the organizational documents of Lease Indenture Trustee and the Owner Lessor contain, and will continue Pass Through Trustee to contain after the transfer, provisions substantially equivalent to those contained in the organizational documents of the Owner Lessor on the Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to S&P.bound by this Section 16.18. ------------- (eb) The Company shall not be responsible for any Taxes arising out of or caused by any transfer pursuant to this Section 7.1 and the Pricing Assumptions shall not be changed as a result of any such transfer. (fc) The Owner Participant OP Member shall give the Owner Lessor, the Lessor Owner Manager, the Lease Indenture Trustee, the Pass Through Trustee and the Company SEMA 30 days' days prior written notice of any transfer pursuant to this Section 7.1such transfer, or 10 days' days in the case of a transfer to an Affiliate of the Equity Investor. Such written notice shall be in the form of a certificate and stating Owner Participant, specifying the name and address of any proposed OP Member Transferee and that such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 716. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs. (h) Upon any such transfer in compliance with this Section 7.1, (i) such OP Transferee shall to the extent of the Member Interest transferred (x) be deemed the "Owner Participant" for all purposes, and (y) enjoy the rights and privileges and perform the obligations of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to which such Owner Participant is a party, and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to the "Owner Participant" shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring Owner Participant and the OP Guarantor, if any, of such transferring Owner Participant's obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant or its OP Guarantor is a party or by which such transferring Owner Participant and its OP Guarantor is bound to the extent such obligations are expressly assumed by the OP Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant or its OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer.